Business Premises Owners: Reduce Your Exposure

It’s going to happen: someone you invited onto your business property is going to hurt.  It could be a slip and fall, a falling object, a runaway shopping cart, or a jagged corner.  The damages could be fairly minor or, depending upon the injury, could reach into the millions of dollars.  Large damages or not, it won’t take long for the victim to point the finger at you.

The following is intended to help you minimize your exposure to premises liability claims by invitees.[1] It is by no means comprehensive, but following these guidelines may save you a call to your insurance carrier or attorney.

1. Know your duty. If you know or reasonably should know that something on your premises poses an unreasonable risk of harm, you have a duty to make the condition reasonably safe or to adequately warn your invitees about it.  Do both immediately.
2. Keep track of who is coming on and off of your property. Loitering should not be tolerated.  If someone is on your property and has no business purpose for being there, then ask them politely to leave.  If they’re not on your property, they can’t get hurt on your property.
3. Inspect your premises constantly. An inspection should include your property and any access to your property (e.g., stairwells, sidewalks, etc.).  Actively look for dangerous conditions, anticipate potential dangerous conditions, and instruct your employees and agents to do the same.  If you see a problem, tend to it immediately.  Simultaneously, use caution tape, warning cones, signage, fencing, or other appropriate warning devices or barriers to alert your invitees of the condition.  If you know about it, your invitees definitely need to know about it.
4. Have a clear understanding of what property you control. If you are in control of the premises, you are responsible.  If you are not in control of the premises, make sure the person in control knows they are responsible.  This is best set out in writing by a formal contract (e.g., a lease agreement).  Even if your control is temporary (e.g., a general contractor), you can be held liable for injuries that occur on your watch.  Persons who may be held liable include proprietors, general contractors, landlords, tenants, and even easement owners.
5. Put yourself in the shoes of the public. Although you typically cannot be held liable under a theory of premises liability for injuries occurring on public property adjacent to yours, the injured party can bring a general negligence cause of action against you for dangerous conditions created on your property (e.g., construction debris, fire, a fence that blocks the view of traffic, water leaking from your taco stand, etc.).   Step into their shoes, and make sure a condition on your property is not potentially causing problems.
6. Use floor mats at all entrances to your building. Even if the weather is clear, you never know when someone might track in a liquid.  Also use floor mats any place water might tend to spill (e.g., near soda or ice machines, sinks, water fountains).  Be sure floor mats are flush with the ground, in good repair, and not overly saturated.
7. If it has wheel, protect with zeal. Cars, trucks, shopping carts, office chairs, and moveable ladders are all items that, gravity willing, will roll fast and hard into the first little old lady in sight.  Implement special safety measures to minimize any runaway wheels, and keep your employees abreast of these measures.
8. If you stack it, it will fall. A good rule of thumb to use when stacking objects is the bump test: after stacking your objects and taking precautions not to cause yourself injury, bump into the stack with moderate force.  If the stack is unstable, consider restacking.[2]
9. If you are transferring control or ownership of property, conduct a thorough inspection. Disclose any pertinent findings to the new person in control.  Do not conceal any defects.
10. If you agree to make an unsafe condition safe, do it. Your failure to do so or to do so negligently, even on property that is not yours or in your control, could expose you to liability.
11. If you break it, fix it. Creating a dangerous condition (even on someone else’s property) can lead you to exposure.
12. Maintain a reasonable level of security. In Texas, a possessor of land owes a duty to use ordinary care to protect those who may be harmed by the criminal acts of third parties if the possessor knew or had reason to know of an unreasonable and foreseeable risk of harm.  Make sure your security needs are reasonably met.